Diede v. UNC Healthcare

United States District Court, E.D. North Carolina, Western Division

July 17, 2018

ANNMARIE DIEDE, Plaintiff,v.UNC HEALTHCARE, et al., Defendants.

ORDER

W.
EARL BRITT SENIOR U.S. DISTRICT JUDGE

This
matter is before the court on the motion to dismiss filed by
defendant Rajai Hussari
(“Hussari”).[1] (DE # 42.) Also before the court is the
second motion to dismiss filed by defendant The University of
North Carolina Health Care System (“UNCHCS”). (DE
# 53.) The issues raised have been fully briefed and are now
ripe for disposition.

I.
FACTS

Plaintiff
initiated this action by filing a pro se complaint
and a motion for leave to proceed in forma pauperis
on 2 September 2016. (DE # 1.) Plaintiff's complaint
seeks relief for alleged violations of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e et seq., by supervisors and
employees of UNCHCS while plaintiff was employed by UNCHCS.
(Compl., DE # 4, at 2.) The complaint also alleges that
Hussari subjected plaintiff to a number of intentional torts,
including assault and battery. (Id. at 4-5.) On 20
January 2017, Magistrate Judge Robert T. Numbers, II granted
plaintiff's motion for leave to proceed in forma
pauperis and ordered that plaintiff's complaint be
filed. (DE # 3.) In the same order, Judge Numbers provided a
memorandum and recommendation on frivolity review pursuant to
28 U.S.C. § 1915(e)(2), in which he recommended
dismissal of some of plaintiff's claims. (Id.)
On 24 February 2017, the court adopted, in its entirety, the
reasoning in Judge Number's memorandum and recommendation
and dismissed some of plaintiff's claims. (DE # 7.)

On 26
April 2017, UNCHCS filed its first motion to dismiss, raising
arguments for dismissal pursuant to Federal Rules of Civil
Procedure 12(b)(1), 12(b)(2), 12(b)(5), and 12(b)(6). (DE #
12.) On 24 January 2018, the court entered an order granting,
in part, and denying, in part, UNCHCS's motion to
dismiss. (DE # 38.) Accordingly, the only claims remaining
before the court are plaintiff's Title VII claims for
hostile work environment and retaliation against both UNCHCS
and Hussari, and plaintiff's claim of assault against
Hussari.

II.
ANALYSIS

Hussari
now moves to dismiss plaintiff's claims against him for
insufficient process pursuant to Federal Rule of Civil
Procedure 12(b)(4), and for lack of personal jurisdiction
based on insufficient service of process pursuant to Federal
Rules of Civil Procedure 12(b)(2) and 12(b)(5). (DE # 42.)
UNCHCS also filed a motion to dismiss, raising the same
arguments for dismissal. (DE # 53.)

A.
Standards of Review

“Failure
to properly serve a defendant prevents a court from obtaining
personal jurisdiction over the defendant and entitles the
defendant to dismissal under Rule 12(b)(2).”
Fordham v. Doe, No. 4:11-CV-32-D, 2011 WL 5024352,
at *3 (E.D. N.C. Oct. 20, 2011) (citation omitted). When a
defendant challenges the court's jurisdiction under Rule
12(b)(2), “the plaintiff bears the burden [of] making a
prima facie showing of a sufficient jurisdictional basis to
survive the jurisdictional challenge.” Consulting
Eng's Corp. v. Geometric Ltd., 561 F.3d 273, 276
(4th Cir. 2009). Similarly, when a defendant seeks dismissal
for insufficient process or insufficient service of process
under Rules 12(b)(4) and 12(b)(5), the plaintiff bears the
burden of establishing that proper service of process was
performed and that the process itself was proper.
Brissett v. Freemont Inv. & Loan Corp., No.
4:08-CV-77-F, 2010 WL 686547, at *2 (E.D. N.C. Feb. 24, 2010)
(citing Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.
N.C. 2003)). “In determining whether the plaintiff has
satisfied his burden, the technical requirements of service
should be construed liberally as long as the defendant had
actual notice of the pending suit.” Elkins,
213 F.R.D. at 275. “When there is actual notice, every
technical violation of the rule or failure of strict
compliance may not invalidate the service of process. But the
rules are there to be followed, and plain requirements for
the means of effecting service of process may not be
ignored.” Armco, Inc. v. Penrod-Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984).

B.
Hussari's Motion to Dismiss

In his
motion to dismiss, Hussari asserts that plaintiff's
claims against him should be dismissed because he has not
been properly served, and therefore, the court lacks personal
jurisdiction over him. (Def.'s Supp. Mem., DE # 43, at
11.) Hussari specifically contends that plaintiff has failed
to effect service because plaintiff initially provided the
U.S. Marshals Service with the incorrect address to serve
him, and there is no evidence that he ever received a copy of
the complaint. (Id. at 7-8.) He further argues that,
despite having notice and the opportunity to correct the
erroneous address, plaintiff did not make a reasonable effort
to serve him before the time within which to do so had
expired. (Id. at 5.)

Federal
Rule of Civil Procedure 4 prescribes the methods by which an
individual may be served in a civil action. Pursuant to Rule
4, service may be accomplished “by delivering a summons
and complaint to the individual personally, by leaving a
summons and complaint at the individual's house or other
place of abode with someone of suitable age and discretion
who resides there, by serving the individual's authorized
agent, or by serving the individual in compliance with the
law of the state where the federal court is located.”
Pitts v. O'Geary, 914 F.Supp.2d 729, 733-34
(E.D. N.C. 2012) (citing Fed.R.Civ.P. 4(e)). The North
Carolina Rules of Civil Procedure permit service “[b]y
mailing a copy of the summons and of the complaint,
registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the
addressee.” N.C. Gen. Stat. § 1 A-1, Rule
4(j)(1)(c). Service of process can be effected by mailing the
summons and complaint to a defendant's place of
employment. Moore v. Cox, 341 F.Supp.2d 570, 573
(M.D. N.C. 2004). However “[s]ervice of process cannot
be effected upon [d]efendant by serving at his place of
employment individuals who are not authorized to accept
service of process.” Elkins, 213 F.R.D. at 276
(citations omitted).

Once
the sufficiency of process is challenged, the plaintiff bears
the burden of establishing that the service of process
complies with the requirements set forth in Rule 4.
Elkins, 213 F.R.D. at 275. In North Carolina, a
return of service showing service on its face raises a
rebuttable presumption of valid service. See Granville
Med. Ctr. v. Tipton, 586 S.E.2d 791, 796 ( N.C. Ct. App.
2003). A defendant may rebut this presumption of valid
service with the “affidavits of more than one person
showing unequivocally that proper service was not made upon
the person of the defendant.” Grimsley v.
Nelson, 467 S.E.2d 92, 94 ( N.C. 1996).

Following
an initial review pursuant to 28 U.S.C. § 1915, this
court ordered the Clerk to issue the summons provided by
plaintiff. (DE # 7, at 2.) On 24 February 2017, the summons
was issued by the Clerk and delivered to the U.S. Marshals
Service for service to Hussari at 101 Manning Drive, Chapel
Hill, NC 27514. (DE # 8, at 3.) The Marshals Service filed a
return of service, indicating service “To Agent”
at the address plaintiff provided on 6 March 2017. (DE # 15.)
A subsequent filing of the same return of service on 24
October 2017 shows that the envelope containing the summons
and complaint was “return[ed] to sender” as
undeliverable on 23 October 2017. (DE # 19, at 3.) Thus, even
though the summons and ...

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